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III-1.2000
II-1.3000
August 20, 1992
The Honorable Tom Harkin
United States Senate
531 Senate Hart Building
Washington, D.C. 20510-6025
Dear Senator Harkin:
This letter is in response to your inquiry on behalf of your
constituent, Lynn Ferrell, who seeks information about the
application of the Americans with Disabilities Act (ADA) to a
privately owned social services organization providing small
group homes for persons with mental disabilities.
The ADA authorizes the Department of Justice to provide
technical assistance to individuals and entities having rights or
obligations under the Act. This letter provides informal
guidance to assist your constituent in understanding the ADA's
requirements. However, it does not constitute a legal
interpretation and it is not binding on the Department.
According to Ms. Ferrell's description, Polk County Health
Services (PCHS) plans to house persons with mental disabilities
in small group homes, located in existing houses that it will
purchase. PCHS has informed us that it is a private non-profit
organization. At present, the organization plans to make six out
of its nine homes accessible because it has identified
participants from six homes who will need wheelchair
accessibility. Because of questions raised by the State of Iowa,
Ms. Ferrell asks whether renovation of the six homes will satisfy
ADA requirements.
The requirements of title III of the ADA apply to a private
entity operating a place of public accommodation. Title III
defines a place of public accommodation as a facility that is
privately owned, affects commerce, and fits into one of twelve
categories. Strictly residential facilities are not included in
this list and are not covered by title III. If the PCHS homes
are strictly residential, they will not be covered by title III
of the ADA. The PCHS homes may, however, be covered by title III
if they are social service center establishments. Facilities are
considered social service center establishments under the ADA if
they provide a significant level of such social services as
medical care, meals, transportation, and counseling.
Title III requires that a public accommodation remove
architectural barriers to access to existing facilities where
their removal is readily achievable. "Readily achievable" means
easily accomplished and able to be done without significant
difficulty or expense. If each group home is considered a social
service center establishment, then title III requires that each
one be made accessible to the extent that it is readily
achievable to do so. Discussion of these provisions, including
the factors to be considered, can be found at pages 35553-54 of
the enclosed title III regulation, and at pages 28-32 of the
enclosed Title III Technical Assistance Manual.
Ms. Ferrell's letter describes the group homes as ICF/MR
facilities. If so, they may be part of a State or local
government program and may, as a result, have to consider
accessibility issues because of this relationship. Title II of
the ADA prohibits discrimination on the basis of disability by
State and local governments. If the State of Iowa contracts with
private entities for the provision of services, the State must
ensure that the contract activities are carried out in a way
consistent with the State's title II responsibilities. This
principle is set out in sections 35.102(a) and 35.130(b) of the
title II regulation and further explained in the preamble to the
Department's regulation at page 35696 (first column). Title II
and the regulation adopt the principles established under section
504 of the Rehabilitation Act of 1973, as amended, which applies
to programs and activities receiving Federal financial
assistance.
If the PCHS group homes are part of a State program, your
constituent should consider sections 35.149 and 35.150 of the
title II regulation, which requires the provision of "program
access," which means that the program, when viewed as a whole,
must be accessible to qualified persons with disabilities.
Achieving program access does not necessarily entail making all
facilities used in the program accessible. In addition, sections
35.130(d) and (e) require the government entity to administer
services, programs, and activities in the most integrated setting
appropropriate to the needs of qualified individuals with
disabilities.
Relevant information may also be found in {{ 35.130,
35.149, 35.150, and 35.151 of the enclosed title II regulation
and {{ 36.104, 36.203, 36.304, 36.305, and 36.402 of the enclosed
title III regulation.
I hope this information is helpful to you in responding to
your constituent.
Sincerely,
John R. Dunne
Assistant Attorney General
Civil Rights Division
Enclosures (4)